Analysis: Proposed changes to inheritance if there is no will

Jennifer Yeats, Residential Solicitor, discusses changes which could potentially cost children their inheritance.

The Law Society of Scotland has warned that new proposals to change the rules of intestacy (where someone dies without leaving a will) could result in children losing out on their inheritance.

The Proposals

The Scottish Government is currently reviewing the law on intestate succession under the Succession (Scotland) Bill. One of the proposals is for the spouse’s share of the estate to be increased however the Law Society feel that this new suggested threshold is too high. The Scottish Government are trying to ensure that the rights of both the spouse and children are more balanced however this proposal could see the spouse’s share exhausting the whole estate.

Currently the law of intestacy distinguishes between heritable property, i.e. land and buildings, and moveable property, i.e. everything else and both spouses and children have legal rights to a share of the deceased’s moveable estate. An individual can therefore exclude someone from inheriting by converting moveable property into heritable property. The Government have proposed that this distinction be removed and the Law Society is in support of this.

A further proposal by the Scottish Government is that legal rights be replaced with a fixed share of 25% of the whole estate which would provide greater clarity and protection against disinheritance.

Conclusion

The proposals by the Scottish Government are significant and will affect everyone regardless of how big or small an estate you have. It is therefore recommended that individuals have a will in place to ensure that their estate is distributed in the way that they would want after their death.

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